Citation Nr: 0026700
Decision Date: 10/05/00 Archive Date: 10/12/00
DOCKET NO. 96-36 891 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUES
1. Entitlement to service connection for a bilateral hip
disability secondary to the service-connected bilateral
chondromalacia of the patellae with arthritis.
2. Entitlement to service connection for a bilateral ankle
disability secondary to the service-connected bilateral
chondromalacia of the patellae with arthritis.
3. Entitlement an increased disability rating for
chondromalacia of the patella of the left knee with
arthritis, currently evaluated as 10 percent disabling.
4. Entitlement an increased disability rating for
chondromalacia of the patella of the right knee with
arthritis, currently evaluated as 10 percent disabling.
5. Entitlement to a total rating for compensation purposes
based on individual unemployability.
REPRESENTATION
Appellant represented by: The American Legion
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Theresa M. Catino, Counsel
INTRODUCTION
The veteran served on active military duty from January to
November 1972.
This appeal arises from an August 1996 rating action of the
No. Little Rock, Arkansas, regional office (RO).
This case was previously before the Board in June 1999. At
that time the Board granted service connection for a low back
disability on a secondary basis. The Board also remanded the
case for additional development.
The issue of entitlement to a total rating for compensation
purposes based on individual unemployability will be
discussed in the Remand portion of this decision.
FINDINGS OF FACT
1. Service connection is in effect for chondromalacia of the
patella of the knees with arthritis, each evaluated as
10 percent disabling, and degenerative joint disease of the
lumbar spine, evaluated as 40 percent disabling.
2. The veteran's bilateral hip degenerative joint disease is
causally related to his service-connected bilateral knee
disability.
3. The veteran's bilateral ankle degenerative joint disease
is causally related to his service-connected bilateral knee
disability.
4. The service-connected chondromalacia of the patella of
the left knee with arthritis is manifested by pain and
tenderness with extension to 0 degrees and flexion to 120
degrees.
5. The service-connected chondromalacia of the patella of
the veteran's right knee with arthritis is manifested by pain
and tenderness with extension to 0 degrees and flexion to 120
degrees.
CONCLUSIONS OF LAW
1. The bilateral hip degenerative joint disease is
proximately due to or the result of a service-connected
disease or injury. 38 U.S.C.A. § 5107 (West 1991);
38 C.F.R. § 3.310 (1999).
2. The bilateral ankle degenerative joint disease is
proximately due to or the result of a service-connected
disease or injury. 38 U.S.C.A. § 5107 (West 1991);
38 C.F.R. § 3.310 (1999).
3. The criteria for a rating a rating in excess of
10 percent for chondromalacia of the patella of the left knee
with arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. §§ 4.40, 4.71a, Diagnostic Codes 5003,
5260, 5261 (1999).
4. The criteria for a rating in excess of 10 percent for
chondromalacia of the patella of the right knee with
arthritis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West
1991); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Codes 5003,
5260, 5261 (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Service Connection
Initially, the Board of Veterans' Appeals (Board) notes that
the veteran's service connection claims are well grounded.
In other words, the Board concludes that the veteran has
presented plausible claims. 38 U.S.C.A. § 5107(a) (West
1991). The Board is also satisfied that all relevant facts
have been properly developed to the extent possible. There
is no indication of any outstanding pertinent records that
could be obtained. The record is complete. As sufficient
data exist to address the merits of the veteran's service
connection claims, the Board concludes that the Department of
Veterans Affairs (VA) has adequately fulfilled its statutory
duty to assist the veteran in the development of his claims.
No further assistance to the veteran is required to comply
with the duty to assist mandated by 38 U.S.C.A. § 5107(a).
Murphy v. Derwinski, 1 Vet.App. 78 (1990); Littke v.
Derwinski, 1 Vet.App. 90 (1990).
Service connection may be granted for a disability which is
proximately due to or the result of a service connected
disease or injury. 38 C.F.R. § 3.310 (1999).
The United States Court of Appeals for Veterans Claims
(hereinafter, "Court") has held that a claimant is entitled
to service connection on a secondary basis when it is shown
that the claimant's service-connected disability aggravates a
nonservice-connected disability. Allen v. Brown, 7 Vet. App.
439 (1995).
Service connection is in effect for chondromalacia of the
patella of the knees with arthritis, each evaluated as
10 percent disabling, and degenerative joint disease of the
lumbar spine, evaluated as 40 percent disabling.
The veteran received treatment at a VA outpatient clinic from
1994 to 1999 for various orthopedic complaints. In January
1995, he reported that his knee pain went up to his left hip.
A VA examination was conducted in October 1995 VA. The
examination showed the veteran used Bledsoe braces and a
cane. The evaluation demonstrated marked patellofemoral
crepitus which reproduced the veteran's bilateral knee
symptoms of grinding and popping sensations, pain, as well as
difficulty walking up and down stairs and kneeling; mild
quadriceps atrophy; flexion to 95 degrees; extension to zero
degrees; stable ligaments; the use of knee braces and a cane;
and radiographic findings of early patellofemoral arthritic
changes in both knees. The diagnosis was severe
chondromalacia of the patellae and minimal early
patellofemoral arthritis of the knees.
A July 1996 VA joints examination demonstrated bilateral knee
braces showing continuous wear, the ability to reflex both
knees, stability, some subpatella crepitation bilaterally
with flexion and extension, no capsular thickening or
synovial effusion, zero to 120 degrees of flexion in the left
knee, zero to 115 degrees of flexion in the right knee, and
radiographic evidence of some early hypertrophic arthritis at
the articular margins on the inner aspect of the medial to
lateral femoral condyle as well as some early patellofemoral
arthritis.
The examination of the ankles showed no swelling. There was
5 degrees dorsiflexion of the left ankle and 10 degrees on
the right. Plantar flexion was to "125" degrees on the
left and "120" degrees on the right. X-rays of the knees
showed early arthritis at the articular margins of the inner
aspect of the medial to lateral femoral condyle. There was
early patellofemoral arthritis. The diagnosis was
chondromalacia of the patella with early hypertrophic
arthritis of the knees.
At a VA spine and joints examination conducted in March 1997,
the veteran reported that he wore ankle corsets due to
symptoms in these joints. No examination of the veteran's
ankles was conducted, and no radiographic films of these
joints were taken. The diagnoses included chondromalacia
patella, both knees, and progressive patellofemoral arthrtis,
both knees.
In April 1997, the veteran complained of painful ankles. In
an April 1998 letter, a private physician noted that he has
treated the veteran for ankle pain. Also in April 1998, the
veteran sought treatment at a VA facility for complaints of
right ankle symptoms. Tender ligaments were found on
examination. Motrin was prescribed.
A hearing was held at the RO in April 1998. At that time the
veteran provided testimony regarding the severity and
etiology of the disabilities in issue. His spouse also
provided testimony describing the symptoms of his
disabilities.
In a June 1999 memorandum, a VA physician stated that the
veteran has been followed for several years. The physician
expressed his opinion that the veteran's hip and ankle
symptoms are secondary to his knee problems.
A VA examination was conducted in July 1999. At that time
the veteran reported that he wore bilateral ankle corsets. A
physical examination demonstrated full range of motion of
both hips, which were completely nonirritable. The veteran
was found to have normal ankle and subtalar motion
bilaterally as well as 2+ ankle jerks bilaterally. The
examiner did not diagnose an ankle or hip disability.
A VA examination was conducted in December 1999. At that
time the veteran complained of chronic ankle and hip pain.
He continued to wear bilateral ankle braces. Examination of
the veteran's hips demonstrated 90 degrees of flexion, full
extension, 45 degrees of external rotation, and 20 degrees of
internal rotation bilaterally. He complained of pain with
any motion of his hips. Evaluation of his ankles indicated
10 degrees of dorsiflexion, 45 degrees of plantar flexion,
normal inversion and eversion, and diffuse tenderness to
palpation around the ankles bilaterally. X-rays taken of his
hips showed narrowing of both hip joint spaces to
approximately three millimeters but no sclerotic or cystic
changes. X-rays taken of his ankles showed mild degenerative
changes, particularly around the medial malleolus.
The examiner assessed, in pertinent part, moderate bilateral
hip degenerative joint disease as well as mild bilateral
ankle degenerative joint disease. In addition, the examiner
concluded that no further treatment was indicated at that
time and that the etiology of the veteran's hip and ankle
pain was difficult to determine. Thereafter, in an addendum
dated in January 2000, another VA examiner stated that he had
reviewed the veteran's record and could not determine with
any amount of certainty whether the etiology of the current
degenerative disease of the veteran's hip was related to his
service-connected injuries.
To summarize, veteran's testimony describing symptoms
associated with his bilateral ankle and bilateral hip
disabilities are competent evidence. However, a lay person
is not competent, in the absence of evidence demonstrating
that he or she has medical training or expertise, to render
medical findings or opinions. Moray v. Brown, 5 Vet. App.
211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App.
492, 495 (1992).
In this regard, the current medical evidence confirms the
presence of degenerative joint disease of the hips and
ankles. In a January 2000 addendum VA physician could not
determine with any amount of certainty whether the etiology
of the degenerative disease of the veteran's hips was related
to his service-connected injuries. No reference was made to
the ankles. However, a VA physician who explained in a June
1999 memorandum that the veteran has been followed for
several years also expressed his opinion that the veteran's
hip and ankle symptoms were secondary to his knee problems.
The Board also notes that the bilateral knee arthritis is
evaluated under Diagnostic Code 5003, degenerative arthritis,
a systemic disorder.
In view of the June 1999 opinion, the Board finds that the
preponderance of the evidence is for the veteran's claims.
Accordingly service-connection for bilateral hip and
bilateral ankle disabilities on a secondary basis is
warranted.
II. Increased Rating Claims For Bilateral Knee Disabilities
Initially, the Board notes that the veteran's increased
rating claims are well grounded. In other words, the Board
concludes that the veteran has presented a plausible claim.
38 U.S.C.A. § 5107(a). See Proscelle v. Derwinski, 2 Vet.
App. 629, 632 (1992) (in which the Court held that a rating
claim is well grounded when the veteran asserts that his or
her service-connected disability worsened since the prior
rating).
The Board is also satisfied that all relevant facts have been
properly developed to the extent possible. As sufficient
data exist to address the merits of the veteran's increased
rating claims, the Board concludes that the Department of
Veterans Affairs (VA) has adequately fulfilled its statutory
duty to assist the veteran in the development of these
claims. No further assistance to the veteran is required to
comply with the duty to assist mandated by 38 U.S.C.A.
§ 5107(a). Murphy v. Derwinski, 1 Vet. App. 78 (1990);
Littke v. Derwinski, 1 Vet. App. 90 (1990).
The service medical records indicate that x-rays taken of the
veteran's knees in July 1972 provided findings of
chondromalacia of both patellae. Based on this evidence, the
RO, by an April 1975 rating action, granted service
connection for bilateral chondromalacia of the patellae and
rated the disability as noncompensable.
A VA joints examination conducted in October 1995
demonstrated marked patellofemoral crepitus which reproduced
the veteran's bilateral knee symptoms of grinding and popping
sensations, pain, as well as difficulty walking up and down
stairs and kneeling; mild quadriceps atrophy; flexion to
95 degrees; extension to zero degrees; stable ligaments; the
use of knee braces and a cane; and radiographic findings of
early patellofemoral arthritic changes in both knees. The
examiner diagnosed severe chondromalacia of the patellae and
minimal early patellofemoral arthritis of the knees.
The RO, by a January 1996 rating action, assigned a
20 percent disability evaluation for the veteran's
service-connected bilateral chondromalacia of the patellae,
effective from September 1995.
The July 1996 VA joints examination demonstrated bilateral
knee braces showing continuous wear, the ability to reflex
both knees, stability, some subpatella crepitation
bilaterally with flexion and extension, no capsular
thickening or synovial effusion, zero to 120 degrees of
flexion in the left knee, zero to 115 degrees of flexion in
the right knee, and radiographic evidence in both knees of
some early hypertrophic arthritis at the articular margins on
the inner aspect of the medial to lateral femoral condyle as
well as some early patellofemoral arthritis. The examiner
diagnosed chondromalacia of the patella with early
hypertrophic arthritis of the knees.
By an August 1996 rating action, the RO assigned separate
10 percent disability evaluations for each of the veteran's
service-connected knee disorders.
The veteran received intermittent treatment at VA facilities
from 1994 to 1999 for several problems, including knee pain.
When seen in January 1997, the veteran reported that his knee
symptoms were worsening. The examiner described the
veteran's knee problems as including chondromalacia of the
patellae and moderate patellofemoral crepitus and refilled
the veteran's prescription of Motrin. In February 1997, the
veteran reported that his bilateral knee condition had not
improved. He was instructed to continue to wear his braces.
A VA examination was conducted in March 1997. At that time
the veteran reported experiencing a worsening of his knee
symptoms. Physical examination of the veteran's knees
demonstrated extension to approximately 5 degrees slowly and
painfully and flexion to 85 degrees. The examiner explained
that these ranges of motion of the veteran's knees
represented a loss of motion of the joints as compared to the
previous evaluation completed in 1995. The knees were
stable. There was tenderness of the patellas. There was
moderate to marked patellofemoral crepitus bilaterally and a
somewhat stilted gait.
X-rays taken of the veteran's knees showed definite
patellofemoral arthritis with narrowing of the patellofemoral
joint space, particularly on the right, and with a sharpening
of the patella. The examiner diagnosed chondromalacia of the
patella, as well as progressive patellofemoral arthritis, of
both knees.
In an April 1998 letter, a private physician explained that
the veteran has been receiving treatment, in pertinent part,
for his knees and that he has been wearing braces.
During the April 1998, the veteran testified that his
service-connected bilateral knee disabilities have increased
in severity. In particular, he described complaints of knee
pain, crunching, and swelling. His spouse also provided
testimony describing the symptoms of his bilateral knee
disabilities.
In a June 1999 statement, a VA physician who has apparently
treated the veteran stated that examination of the veteran's
knees showed motion from zero to 90 degrees, marked crepitus,
as well as atrophy and weakness secondary to the knee
condition. In addition, the examiner explained that normal
range of motion of the knee joint would be zero to
130 degrees and that flare-ups of the veteran's knee
condition worsen his function.
At the July 1999 VA examination, the veteran reported having
some pain in his knees and wearing bilateral hinged knee
braces daily. Physical examination of his knees demonstrated
full extension and approximately 130 degrees of flexion
bilaterally as well as stability to varus or valgus stress.
X-rays of the veteran's knees were not taken, and the
examiner did not diagnose a knee disability.
In December 1999, the veteran underwent a VA joints
examination at which time he complained of chronic knee pain
and reported that he takes Motrin four times daily. The
veteran explained that, although the Motrin helps a small
amount, the medicine does not completely alleviate his pain.
The veteran continued to wear bilateral knee braces.
Physical examination of the veteran's knees demonstrated 2+
deep tendon reflexes in both patellar regions, range of
motion from zero to 120 degrees, stability to varus and
valgus stress and to anterior and posterior drawer test,
tenderness diffusely over the medial and lateral joint lines
and over the medial and lateral aspects of the patellae, no
effusion, no warmth, and no sign of infection. X-rays taken
of both of the veteran's knees shows moderate degenerative
joint disease in all three compartments.
The examiner assessed, in pertinent part, moderate bilateral
knee degenerative joint disease. In addition, the examiner
concluded that, at this time, no further treatment was
indicated, other than the veteran's current use of braces and
Motrin. The examiner also expressed his opinion that the
veteran has some significant pain from this disability.
Analysis
Disability evaluations are determined by the application of a
schedule of ratings that is based, as far as can practicably
be determined, on the average impairment of earning capacity.
38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected
disability is rated on the basis of specific criteria
identified by diagnostic codes. 38 C.F.R. § 4.27 (1999).
In evaluating the severity of a particular disability, it is
essential to consider its history. 38 C.F.R. §§ 4.1, 4.2
(1999). However, where entitlement to compensation has
already been established and an increase in disability rating
is at issue, the present level of disability is of primary
concern. Although a review of the recorded history of a
disability should be conducted in order to make a more
accurate evaluation, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55, 58 (1994).
The RO has assigned a 10 percent rating for chondromalacia of
the patellae with arthritis involving each knee in accordance
with the Schedule for Rating Disabilities, 38 C.F.R. Part 4,
Diagnostic Codes 5003 and 5257.
Diagnostic Code 5257 provides for the evaluation of other
impairment of the knee, to include recurrent subluxation or
lateral instability. When the disability is moderate, a
rating of 20 percent is provided. When the disability is
severe, a rating of 30 percent is provided.
Diagnostic Code 5003 provides that degenerative arthritis
established by X- ray findings will be rated on the basis of
limitation of motion.
Diagnostic Code 5260 provides that a zero percent, or
noncompensable, rating is warranted when flexion is limited
to 60 degrees. A 10 percent rating is warranted when flexion
is limited to 45 degrees; a 20 percent rating is warranted
when flexion is limited to 30 degrees; and a 30 percent
rating is warranted when flexion is limited to 15 degrees.
Diagnostic Code 5261 provides that when extension of the knee
is limited to 5 degrees, a noncompensable evaluation is for
application. When extension is limited to 10 degrees, a 10
percent rating is warranted; when extension is limited to 15
degrees, a 20 percent rating is warranted; and when extension
is limited to 20 degrees, a 30 percent rating is warranted.
When extension is limited to 30 degrees, a 40 percent rating
is warranted.
Full range of motion of the knee is measured from 0 degrees
to 140 degrees in flexion and extension. 38 C.F.R. § 4.71,
Plate II.
Regulations define disabilities of the musculoskeletal system
as primarily the inability, due to damage or infection in
parts of the system, to perform the normal working movements
of the body with normal excursion, strength, speed,
coordination and endurance. 38 C.F.R. § 4.40 (1999).
Disabilities of the joints consist of reductions in the
normal excursion of movements in different planes.
Consideration is to be given to whether there is less
movement than normal, more movement than normal, weakened
movement, excess fatigability, incoordination, pain on
movement, swelling, deformity or atrophy of disuse,
instability of station, or interference with standing,
sitting, or weight bearing. 38 C.F.R. § 4.45 (1999).
The Court has held that when a Diagnostic Code provides for
compensation based solely upon limitation of motion, the
provisions of 38 C.F.R. §§ 4.40 and 4.45 (1999) must also be
considered, and that examinations upon which the rating
decisions are based must adequately portray the extent of
functional loss due to pain "on use or due to flare-ups."
DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).
VA General Counsel Opinion, VAOPGCPREC 23- 97 (July 1997),
held that arthritis and instability of the knee may be rated
separately under Diagnostic Codes 5003 (5010) for limitation
of motion and 5257. Also, VAOPGCPREC 9-98 (August 1998)
indicates that when a knee disability is rated under
Diagnostic Code 5257 it is not required that the claimant
have compensable limitation of motion under Diagnostic Code
5260 or 5261 in order to obtain a separate rating for
arthritis. It is only required that the claimant's degree of
limitation of motion meet at least the criteria for a zero-
percent rating.
To summarize, the veteran's statements and testimony
describing the symptoms associated with his disabilities are
considered to be competent evidence. Espiritu v. Derwinski,
2 Vet.App. 492 (1992). However, these statements must be
viewed in conjunction with the objective medical evidence of
record.
In this regard the evidence shows that the veteran reports
pain the both knees, which was described as significant.
Additionally, he wore braces. Recent VA x-rays showed the
presence of arthritis involving all three compartments of the
knees, which was classified as moderate and knee tenderness.
However, the recent VA examination showed no instability,
subluxation or swelling of the knees.
Additionally, there was only slight limitation of motion of
the knee with normal extension and only 20 degrees lacking in
flexion out of a normal 140 degrees. To warrant a 20 percent
rating limitation of flexion to 30 degrees is required.
Accordingly, the Board does no find that the criteria for a
higher rating had been met.
Also, in view of the slight impairment in the range of
motion, the Board is satisfied that the degree of functional
loss due to pain on use and flare-ups as set forth in 38
C.F.R. §§ 4.40, 4.45 (1999) and DeLuca, supra, is
contemplated in the current 10 rating percentage.
Also, in view of the lack of instability involving the knees,
a separate rating under Diagnostic Code 5257 is not
warranted. Additionally, the evidence is not in equipoise as
to warrant consideration of the benefit of the doubt rule. 38
C.F.R. § 4.3 (1999).
ORDER
Service connection for bilateral hip degenerative joint
disease, secondary to the service-connected bilateral
chondromalacia of the patellae with arthritis, is granted.
Service connection for bilateral ankle degenerative joint
disease, secondary to the service-connected bilateral
chondromalacia of the patellae with arthritis, is granted.
A disability rating greater than 10 percent for
chondromalacia of the patella of the left knee with arthritis
is denied.
A disability rating greater than 10 percent for
chondromalacia of the patella of the right knee with
arthritis is denied.
REMAND
As discussed in the previous portion of this decision, the
Board has granted service connection for moderate bilateral
hip degenerative joint disease, secondary to the
service-connected bilateral chondromalacia of the patellae
with arthritis, and for mild bilateral ankle degenerative
joint disease, secondary to the service-connected bilateral
chondromalacia of the patellae with arthritis. Due process
now requires that the RO assign appropriate disability
ratings to these newly service connected bilateral hip and
bilateral ankle disorders. Assignment of these disability
evaluations should be made prior to a final adjudication of
the veteran's claim for a total rating based on individual
unemployability.
Accordingly, the case is REMANDED to the RO for the
following:
The RO should assign appropriate
disability ratings for the
service-connected moderate bilateral hip
degenerative joint disease and bilateral
ankle degenerative joint disease.
Following the assignment of these
disability ratings, the RO should
re-adjudicate the issue of entitlement to
a total rating based on individual
unemployability.
If the benefit sought is not granted, the veteran and his
representative should be furnished a supplemental statement
of the case and given an opportunity to respond. The case
should then be returned to the Board for appellate
consideration.
The veteran has the right to submit additional evidence and
argument on the matter that the Board has remanded to the RO.
Kutscherousky v. West, 12 Vet.App. 369 (1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 2000) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
ROBERT P. REGAN
Veterans Law Judge
Board of Veterans' Appeals